5.2 Fairness to Opposing Party, Counsel, and Meritorious Claims
Key Takeaways
- A claim is not frivolous if there is a basis in law and fact, including a good faith argument to extend, modify, or reverse existing law.
- In criminal cases, a defense attorney may put the prosecution to its proof even if they know the client is factually guilty.
- Delaying litigation solely to secure a tactical advantage or financial benefit violates Rule 3.2.
- Lay witnesses can be compensated for reasonable expenses and lost wages, but expert witnesses cannot receive contingent fees.
- A lawyer cannot request non-clients (other than relatives or employees of a client) to refrain from voluntarily giving information to opposing parties.
Fairness to Opposing Party, Counsel, and Meritorious Claims (Rules 3.1, 3.2, 3.4)
The adversary system relies on advocates presenting their cases vigorously, but within clear ethical boundaries. The ABA Model Rules of Professional Conduct seek to maintain this balance through Rule 3.1 (meritorious claims), Rule 3.2 (expediting litigation), and Rule 3.4 (fairness to opposing party and counsel). These rules establish the "rules of fair play" for litigation, preventing abuse of the judicial process and ensuring that cases are decided on their merits rather than through obstruction, delay, or deception.
Meritorious Claims and Frivolous Litigation
Under Model Rule 3.1, a lawyer is prohibited from bringing or defending a proceeding, or asserting or opposing an issue, unless there is a basis in law and fact for doing so that is not frivolous. A claim or defense is frivolous if the lawyer cannot make a good faith argument on the merits.
However, the rule explicitly provides that an argument is not frivolous if it represents a good faith argument for an extension, modification, or reversal of existing law. Law is not static, and advocates must have the freedom to challenge outdated precedents. Furthermore, a claim is not frivolous merely because the lawyer does not yet have all the facts to prove the case, as long as they expect to develop the necessary evidence through discovery.
There is a critical exception for criminal defense attorneys. A lawyer representing a defendant in a criminal proceeding (or a respondent in a proceeding that could lead to incarceration) may defend the case in a way that requires the prosecution to establish every element of the crime. Even if the defense lawyer knows the client is factually guilty, it is not frivolous to plead "not guilty" and force the government to meet its constitutional burden of proof.
Expediting Litigation
Model Rule 3.2 requires lawyers to make reasonable efforts to expedite litigation consistent with the interests of the client.
The standard for evaluating compliance with this rule is objective: whether a reasonable lawyer would regard the course of action as having some substantial purpose other than delay. Although clients may sometimes benefit financially or strategically from dragging out a lawsuit (such as delaying a judgment they cannot afford to pay), the Comments to Rule 3.2 make clear that realizing a financial or other benefit from otherwise improper delay is not a legitimate client interest. Dilatory practices bring the legal profession into disrepute, and scheduling delays must not be used as a tactical weapon.
Fairness to Opposing Party and Counsel
Model Rule 3.4 contains a series of specific prohibitions designed to ensure a level playing field between the parties:
1. Obstructing Access to Evidence
A lawyer must not unlawfully obstruct another party's access to evidence, or alter, destroy, or conceal documents or other materials with potential evidentiary value. This applies to the lawyer and any instruction the lawyer gives to others. If a client provides the lawyer with physical evidence of a crime (such as a weapon or stolen property), the lawyer cannot hide it. The lawyer must turn it over to law enforcement, although the lawyer may inspect or test it first.
2. Falsifying Evidence and Witness Inducements
A lawyer must not falsify evidence or counsel a witness to testify falsely. This extends to the payment of witness fees:
- Lay Witnesses: A lawyer may pay a lay (fact) witness for their reasonable travel expenses, lodging, meals, and the reasonable value of any time lost (such as lost wages) due to preparing for or attending court. The lawyer cannot pay a fact witness for the content of their testimony, nor can they pay them a fee simply to testify.
- Expert Witnesses: A lawyer may pay an expert witness a reasonable professional fee for their time spent preparing, analyzing evidence, and testifying. However, the fee must not be contingent on the outcome of the case. Contingent fees for experts are strictly prohibited because they create an unacceptable risk of biased testimony.
3. Discovery Abuse
In pretrial procedures, a lawyer must not make frivolous discovery requests or fail to make reasonably diligent efforts to comply with legally proper discovery requests. Discovery is meant to be self-executing, and weaponizing document requests or refusing to produce discoverable materials violates this rule.
4. Trial Conduct
Under Rule 3.4(e), a lawyer at trial must not allude to any matter that the lawyer does not reasonably believe is relevant or supported by admissible evidence. Furthermore, a lawyer must not assert personal knowledge of facts (unless testifying as a witness) or express personal opinions regarding the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. Advocates must argue the evidence in the record, not insert their own credibility into the case.
5. Requesting Witnesses Refrain from Giving Information
A lawyer is prohibited from requesting a person other than a client to refrain from voluntarily giving relevant information to another party (Rule 3.4(f)).
There is an important exception: a lawyer may make this request if the person is a relative, employee, or agent of the client, AND the lawyer reasonably believes that the person's interests will not be adversely affected by refraining. A lawyer cannot make this request to a bystander witness or an unrelated third party.
An attorney represents a plaintiff in a personal injury action. The attorney wants to depose a key witness who is an employee of the defendant corporation. The defense attorney requests that all employees of the defendant corporation refrain from speaking voluntarily with the plaintiff's attorney and instead require them to be formally subpoenaed. Under the Model Rules, is the defense attorney's request proper?
An attorney represents a client in a complex civil litigation. To prepare for trial, the attorney hires an expert witness to testify regarding technical valuation issues. The attorney agrees to pay the expert a fee of $5,000 for her preparation time and a flat fee of $10,000 for her trial testimony, plus an additional $20,000 if the client wins the lawsuit. Is this fee arrangement proper?
During the trial of a civil breach of contract case, the plaintiff's attorney is making his closing argument to the jury. The attorney states, "I have known the plaintiff for ten years, and I can tell you from my personal experience that he is an honest man who would never lie about these negotiations. In my opinion, the defendant's key witness is clearly fabricating her story to save her job." Is the attorney's closing argument proper?